Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10912
SECOND DIVISION Docket No. 10486
2-D&RGW-CM-'86
The Second Division consisted of the regular members and in
addition Referee Steven Briggs when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(The Denver and Rio Grande Western Railroad Company

Dispute: Claim of Employes:

1. That the Denver & Rio Grande Western Railroad Company violated the provisions of the controlling Agreement when it hired a painter from outside the railroad industry to work as a carman painter. This outside painter should have been hired as a helper and been required to meet the requirements and qualifications of a painter in the railroad industry.

2. That the upgrading of carman helpers to carmen painters, has consistently been the past practice on this Carrier's property. That being qualified as a body and fender man does not meet the requirements and qualifications under the Carmen's Classification rules.

3. That accordingly, the Denver & Rio Grande Western Railroad Company be ordered to compensate Carman Painter P. F. Sanchez for the difference between carmen helpers' pay and the pay of a carman painter from January 19, 1982 until January 21, 1982. Then for carman painter's pay from January 22 until such time as this claim is settled, or as long as Mr. Winkler is working as a carman painter while Mr. Sanchez is furloughed and continuing as long as Mr. J. L. Winkler is promoted to a carman painter ahead of Mr. Sanchez, or until this grievance is satisfactorily settled.

FINDINGS:

The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved .tune 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.


Form 1 Award No. 10912
Page 2 Docket No. 10486
2-D&RGW-CM-'86

The Carrier operates a Freight & Passenger Car Shop at Denver, Colorado, where rail cars are rebuilt, maintained, and painted. There were six Journeyman Painters employed there when in August, 1980, the two most senior experienced Painters retired. To fill in the gap created by their retirement, the Carrier upgraded the Claimant from his Carman Helper position to that of a Set-Up Painter. He had been similarly upgraded for approximately three months in 1979. In January, 1981, another experienced Journeyman Painter retired, creating an additional need for experienced Painters at the Car Shop.

On August 3, 1981, the Carrier hired J. F. Winkler from the outside as a Journeyman Painter. Winkler had eighteen years' experience as a painter. He was added to the Painter Seniority Roster.

On January 19, 1982, the Claimant's position was abolished due to a decline in work volume, and he was set back to his former position of Carmen Helper. On January 23, 1982, the Claimant was furloughed.

The Organization argues that the Carrier violated Rule 91, 92 and 99 of the Controlling Agreement when it hired Winkler as a Carman Painter. It maintains that the word "Carman" is a railroad industry term, and thus it would have been impossible for Winkler to have been hired with the requisite 732 days' practical experience as a Carman under Rules 91 and 92. The Organization also notes the practice of advancing Carmen Helpers to Carmen Painters, and points to one case where an experienced Painter was indeed hired from the outside, but made to serve the contractually required number of days before becoming a Carman Painter.
















Form 1 Award No. 10912
Page 3 Docket No. 10486
2-D&RGW-CM-'86
(b) These employees will be released from
service in reverse order in which they were
employed.
(c) A special list or roster shall be com
piled and maintained showing the name and date of
employment of these employes; the General Chair
man and Local Chairman shall be furnished a copy
thereof".

The Carrier argues that the Organization did not follow the usual manner in processing the Claim and, therefore, the Claim is procedurally defective. With regard to the merits, the Carrier cites Rule 27:







                      Journeymen (Carmen)


                      Journeymen Painters


                        Upholsterers


                        Patternmakers


                          Helpers


                        Apprentices"


The Carrier notes that the Claimant does not appear on the Painter Seniority List. It also asserts that it properly employed Winkler under Rules 27, 35, 91 and 92, and under the past practice of employing qualified Painters from outside the railroad industry.

This Board has reviewed the applicable Rules and concluded that the Carrier did not violate them when it hired Winkler as a Carman Painter. Rule 91 provides that a person with three years' experience at Carmen's work, who . . . "can perform the work of his craft . . ." shall constitute a Carman. We agree with the Carrier that Winkler's eighteen years' experience as a Journeyman Painter conforms to the thrust of Rule 91. And from Rule 92, the work of painting in connection with the work of the craft is Carman work:
Form 1 Award No. 10912
Page 4 Docket No. 10486
2-D&RGW-CM-'86

          "Rule 92


          Carmen's work including regular and helper appren

          tices, shall consist of building, maintaining, dis

          mantling . . . , painting, . . .'


With regard to Rule 99, since we have concluded that Winkler was a qualified Painter Mechanic when he was hired, it does not follow that he joined the Carrier's employ under Rule 99 as a person who simply had three years experience using the tools of the craft.

We have also considered the Organization's past practice argument, but note that the one case it cited (with regard to an experienced painter hired from the outside and made to serve 732 days before being placed on the Painter seniority board) does not constitute a valid past practice. It is well-established in arbitration generally that a single case is not sufficient to reflect an established practice between the parties to a Labor Agreement.

Having resolved the matter on its merits, there is no need for the Board to discuss the Carrier's procedural argument.

                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Second Division


Attest:
        Nancy J r - Executive Secretary


Dated at Chicago, Illinois, this 9th day of July 1986.